Kerre Woodham: Will changing the right to silence allow justice to be served?

National is promising to take away the right to silence in child murder cases if re-elected. Which might be an enormously popular move. Who doesn't want to see somebody held accountable for the deaths of so many babies and children in this country over the years? But I hope they've done their homework on how exactly they're going to force people to speak and what the unintended consequences might be.  

I really, really don't want multi-million-dollar lawsuits being settled down the line. The party admits sure, the policy may breach the Bill of Rights Act, but says public sentiment towards bringing accountability and justice to unresolved cases outweighs the potential harms arising from it. Paul Goldsmith, National's justice spokesperson, said the party would amend the Crimes Act to make it an offence for a person to withhold information from police when they've been present at a location where a child aged 12 and under has been killed. The Bill of Rights Act and the Crimes Act would probably have to be tinkered with, but Prime Minister Chris Luxon says that's not an insurmountable problem. 

"Yeah, we had the same thing when we banned the gang patches. That was against their rights, you know, what's called a BORA assessment. We've had that in the past as well with whether it's been, you know, alcohol testing and other things I think from memory way back in the day as well. So quite normal, you know, the Attorney General will look at the legislation, may decide it's inconsistent with the rights. That has happened, but equally in this case it's one I think most New Zealanders would sit there and go, yeah, that doesn't feel right and actually there are responsibilities, not just rights." 

Absolutely. If you're going to remain silent, you have a responsibility to give information and if you decide to withhold it to cover your own desperate skin or those of your mates, then there will be consequences. Chief victims advisor Ruth Money says the change could lead to good outcomes and that defendants won't have an excuse to hide behind. 

"It's giving them a reason to speak. At the moment they don't have a reason to speak. They can stay schtum and that baby and the wider family get no justice. You literally get away with killing a child." 

Yeah, and that's that. Former defence lawyer and former Crown prosecutor John Munro was speaking to Mike Hosking Breakfast, but he says coercing people can disadvantage defendants. 

"There's probably very few sort of situations where that's happened where somebody has maintained their right to silence and then somebody hasn't been charged or convicted. There's probably just as many people that have been under right to silence, had been forced under duress or have low IQ or can't, are very intimidated by the police. So there's just as many people on the other side of that coin. It's not very helpful I think to enter into emotive sort of comments." 

But what do you do? I mean, for years we've stood by and watched people, families maintain their right to silence and child murderers go free. Perpetrators of unspeakable trauma on generations of children go free. And that doesn't sit right. I've heard people talking about a change to the right to silence interfering with justice. And that's so wrong. It will interfere with the legal system, sure, I concede that point, but not justice. Justice is when somebody is held accountable for the death of a baby and the trauma to a household of children. The legal system will be impacted if there's change, but changes to the legal system might allow for justice to finally be served.